By the Court,
Marcy, J.
Had the suit in this case progressed to judgment by default, the plaintiff would have been
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entitled to judgment for the penalty, and that exceeding $50, he would of course have recovered costs. So he would have been entitled to a like judgment and recovered costs, had the defendants pleaded and failed in shewing payment of the bond or of a part thereof; but had they proved payment of ever so inconsiderable a sum, the plaintiff would not have been entitled to costs, but would have been liable to pay costs; for, in such case the amount actually due is the test by which the right to costs is determined; and if the plaintiff does not recover a sufficient sum to entitle him to costs, the defendant has judgment for costs. 2 R. S. 615, 16, § 16, 21, 22. So, too, where a suit upon a contract is settled before judgment, and the sum actually due does not exceed $50, costs cannot be demanded or received by the plaintiff, id. § 21. In this case, the amount actually due was tendered, and such lender was a settlement of the suit within the meaning of the statute. The plaintiff was under no necessity of prosecuting in this court;' he might have brought his suit in a justice’s court, to which courts jurisdiction is expressly given where there is a bond with a penalty exceeding $50, with condition for the payment of a sum of money hot exceeding $50, by action of covenant on the condition. 2 R. S. 225, § 3. The defendants are therefore entitled to the rule asked for.
Motion granted.